The Medicines Co. v. Hospira, Inc.

Fitzpatrick Case UpdateJuly 11, 2016

In The Medicines Co. v. Hospira, Inc., Slip Op. 2014-1469, 2014-1504 (Fed. Cir. July 11, 2016) the Federal Circuit en banc held that a contract manufacturer’s sale to the patentee of manufacturing services, where neither title to the patented embodiments nor the right to market the same passed to the manufacturer, does not constitute an invalidating sale under 35 U.S.C. § 102(b) (pre-AIA). In so holding, the Federal Circuit asserted that commercial benefit is not enough to trigger the on-sale bar. Rather, the transaction must be one in which the product is commercially marketed, e.g., the subject of a sale or offer that “bears the general hallmarks of a sale pursuant to Section 2-106 of the Uniform Commercial Code.”